Circular 2013/06: Amendments to the Australian Public Service Commissioner's Directions 2013

Please note - this is an archived circular.

The purpose of this circular is to advise agencies of amendments that have been made to the Australian Public Service Commissioner’s Directions 2013.

Background

2. To support the amendments made to the Public Service Act 1999 (PS Act) by the Public Service Amendment Act 2013, the Public Service Commissioner issued a new set of directions under the PS Act – the Australian Public Service Commissioner’s Directions 2013 – to come into effect on 1 July 2013.

These new Directions were made on 12 March 2013 and replace the Public Service Commissioner’s Directions 1999 (the 1999 Directions).

3. Some further amendments have now been made to the Australian Public Service Commissioners Directions 2013 through the Australian Public Service Commissioner’s Amendment Direction No.1 (the Amendment Direction) effective from 1 July 2013. The Amendment Direction is available at http://www.comlaw.gov.au/Details/F2013L01212. A consolidated version of the Australian Public Service Commissioner’s Directions 2013 including these amendments is available on the Comlaw website.

4. The Amendment Direction clarifies certain provisions and makes a number of other amendments to the 2013 Directions. These are set out in more detail below.

5. The Amendment Direction is a disallowable legislative instrument and will be tabled in each House for consideration over 15 sitting days.

RecrutAbility Scheme

6. The Amendment Direction continues the arrangements set out in clause 4.3C of the 1999 Directions in relation to the RecruitAbility Scheme that were introduced on 1 May 2013.

7. The new arrangements are set out at clause 2.17A of the 2013 Directions and replicate the earlier arrangements, with the exception that Senior Executive Service vacancies are no longer excluded from the Scheme.

8. Under the RecruitAbility Scheme, an agency head may put in place the measures designed to address aspects of the employment related disadvantage experienced by people with disability. Agencies will continue to be able to determine that the Scheme applies when filling vacancies in their agency. The Scheme is currently being conducted as a pilot.

New arrangements for collection of data

9. New clause 7.6 of the 2013 Directions provides that each agency head must ensure that measures are put in place in the agency to collect certain personal information from each employee of the agency and to provide that information to the Commissioner.

10. This new provision is aimed at improving the quality of data collected by agencies (particularly around disability and indigenous status, but also in relation to other matters such as educational qualifications) that is then stored in the APS Employment Database. Given the sensitive nature of this data, subclause 7.6(2) provides that in seeking the information, the agency measures must allow employees a “choose not to give this information” option (which can also be reported).

11. Further information on the operation of these provisions will be provided to agencies.

Gazettal of certain employment decisions

12. Clauses 2.29 and 2.30 of the 2013 Directions require that agencies notify certain employment decisions (and the cancellation of certain employment decisions) in the Public Service Gazette. These clauses also provide that notification occur within 3 months of the relevant decision being made.

13. An amendment has been made to clause 2.29 to clarify when this 3 month period commences in certain circumstances. The amendment recognises that there may be practical difficulties in satisfying this 3 month requirement when the decision to be notified is an engagement, promotion or assignment/movement decision and is made on the basis that the person has to satisfy an eligibility requirement (such as obtaining a security clearance) before the decision takes effect.

14. Such eligibility requirements can take some time to complete. The changed arrangements (as set out in new subclauses 2.29(2) and (3)) provide that where an employment decision is made on the basis that the person is required to satisfy an eligibility requirement before the decision becomes operational, the 3 month period in which the decision must be gazetted is taken to commence at the time the eligibility requirement is met. They also introduce additional flexibility for the Commissioner to agree to a different gazettal timeframe should that be necessary in particular circumstances.

15. The Commission is separately undertaking a review of this provision as it applies to gazetting termination of employment decisions to investigate concerns expressed about its impact on the privacy of individuals.

Transitional provisions

16. The Amendment Direction inserts a new Chapter 9 into the 2013 Directions which sets out certain transitional matters relating to the repeal of the 1999 Directions and the making of the 2013 Directions.

New subclause 9.1(1) provides that where an APS agency advertised a vacancy prior to 1 July 2013, clause 2.9 of the Commissioner’s Directions does not apply in relation to that action and the relevant rules applying to advertising as set out in the 1999 Directions continue to apply. This will make it clear that an agency head can continue to fill such vacancies in accordance with the rules that applied at the time the vacancy was advertised.

New subclause 9.1(2) relates to the new requirements in subclauses 2.29 and 2.30 of the Commissioner’s Directions to notify certain employment decisions (and the cancellation of certain employment decisions) in the Public Service Gazette within a 3 month period. It provides that for a decision made before 1 July 2013, the 3 month period commences on 1 July 2013. The additional flexibility provided by the amendments to clause 2.29 (see paragraph 14 above) will also apply in these circumstances.

Other amendments

17. The other changes made by the Amendment Direction are largely technical in nature. They involve:

The insertion of a Note below clauses 2.15 and 2.16 of the 2013 Directions.

These clauses deal with affirmative measures relating to the recruitment of Aboriginal or Torres Strait Islander applicants and persons with an intellectual disability respectively.

The purpose of these notes is to make it clear that when the engagement is as a non-ongoing APS employee, the normal rules applying to such engagements (set out in regulation 3.5 of the Public Service Regulations 1999) apply. Regulation 3.5 prescribes certain conditions which apply to the engagement of non-ongoing APS employees, e.g. the circumstances in which an Agency Head may engage a non–ongoing employee for a specified period.

An amendment to clause 2.25 of the 2013 Directions which prescribes minimum requirements relating to the temporary assignment of duties to an employee at a higher classification level.

Paragraph 2.25(2)(a) has been amended to substitute a reference to ‘duties’ for the reference to ‘vacancy’ – vacancy is a defined term in clause 2.3 of the Commissioner’s Directions and is inappropriate in the context of temporary assignment of higher duties. The intent of the clause is unchanged.

An amendment to Schedule 1 of the 2013 Directions to correct a drafting error in the arrangements relating to APS employees who resign to contest an election.

The amendment makes it clear that persons who are re-engaged in these circumstances are entitled to be engaged at their former classification (not at a lower classification), subject to their satisfying the other provisions set out in section 32 of the PS Act and the Commissioner’s Directions.

Further advice

Please contact the Public Service Amendment Act team on 02 6202 3737 if this circular requires clarification.

John NortonA/g Group ManagerEmployment Policy and Participation Group

28 June 2013

Connect with APSC

The Australian Public Service Commission (APSC) is a central agency within the Prime Minister and Cabinet portfolio. The Commission supports two statutory office holders: the Australian Public Service Commissioner - who is also agency head - and the Merit Protection Commissioner. Their functions are set out in sections 41(1) and 50(1), respectively, of the Public Service Act 1999.